Lac La Ronge Indian Band et al. v. Canada and Saskatchewan, 2001 SKCA 109

• Judge: Tallis, Vancise and Gerwing, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 23, 2001
• Jurisdiction: Saskatchewan
• Citations: 2001 SKCA 109;(2001), 213 Sask.R. 1 (CA)

Lac La Ronge Indian Band v. Can. (2001), 213 Sask.R. 1 (CA);

    260 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. OC.052

Chief Miles Venne, and all of the Councillors of the Lac La Ronge Indian Band, representing themselves and all other members of the Lac La Ronge Indian Band, and all other members of the James Roberts Band of Cree Indians, and Amos Charles Band of Cree Indians, and all of the lawful successors of those two Bands (respondents/plaintiffs) v. Her Majesty the Queen in Right of Canada, Her Majesty the Queen in Right of the Province of Saskatchewan (appellants/defendants) and Her Majesty the Queen in Right of Alberta (intervener) Bigstone Cree Nation (intervener) and Athabasca Tribal Council (intervener)

(No. 3473; 2001 SKCA 109)

Indexed As: Lac La Ronge Indian Band et al. v. Canada and Saskatchewan

Saskatchewan Court of Appeal

Tallis, Vancise and Gerwing, JJ.A.

October 23, 2001.

Summary:

The Lac La Ronge Indian Band sued for a declaration that Canada and Saskatchewan failed to fulfil their treaty obligations under Treaty No. 6 and claimed that it was entitled to additional lands and monies. In particular, the Band claimed entitlement to 128 acres per Indian based on the Band's present population as opposed to the population at the time of first survey or first census taken after the signing of the adhesion to the treaty in 1889. The band also claimed certain lands at Candle Lake and certain school lands situated in the Town of La Ronge which they asserted were set aside as reserves but not formally transferred to the Band.

The Saskatchewan Court of Queen's Bench, in a decision reported at 188 Sask.R. 1, ordered that the Band's land entitlement be determined using "the current population formula" (i.e. the Band's population at the time the entire treaty land entitlement was set apart). The court dismissed the claim for a declaration that certain lands were set apart as an Indian Reserve. Canada appealed the declaration that land entitlement be determined using the "current population formula". Saskatchewan appealed the entire judgment. The Band cross-appealed the dismissal of its claim to lands at Candle Lake and to the school land.

The Saskatchewan Court of Appeal allowed the appeal and set aside the finding that the land entitlement be based on the current population. Entitlement was to be based on the Band's population as of 1889 adjusted for late adherents. The court determined entitlement accordingly. The court dismissed the cross-appeal. The court remitted the matter to the Court of Queen's Bench for a determination of the amount of damages, if any, owed to the Band as a result of the loss of opportunity to use the reserve lands and for a determination of the amount of compensation payable for twine and ammunition.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - An Indian Band claimed reserve lands under a treaty and adduced evidence of the oral history from elders respecting the meaning and intent of the reserve land clause - The trial judge held that the oral history testimony was hearsay, but properly admissible where it met the requirements of necessity and circumstantial probability of reliability - However, the court considered the evidence with caution, because the elders had been actively involved in the "pursuit of Indian rights" and there was a chance that their personal opinions might have coloured their testimony - The Saskatchewan Court of Appeal affirmed the decision - See paragraphs 36 and 37.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - In 1930, Canada conveyed land at Candle Lake to Saskatchewan pursuant to the Natural Resources Transfer Agreement - The Lac La Ronge Indian Band asserted that lands had been set aside as an Indian reserve pursuant to Treaty No. 6 and that the federal Crown was obligated to transfer the land to Band - The Band asserted that the federal Crown had breached a fiduciary duty by not pursuing an action against Saskatchewan to compel it to convey the lands to Canada - The trial judge held that although the Crown had failed in its Treaty obligation to transfer the lands, it had not breached its fiduciary duty - The Saskatchewan Court of Appeal affirmed the decision - See paragraphs 162 to 195.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - [See Evidence - Topic 1527 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - An Indian Band claimed reserve lands under a treaty and adduced evidence of subsequent conduct to show the parties' intention - The Crown objected, claiming that the evidence was too remote from the treaty's execution - The trial judge held that the evidence should not be excluded just because it was remote - The conduct of the successors to the signing parties could be admitted if it shed light on their intention when signing the treaty - It could also be admitted where it was simply an extension of the original conduct and reinforced it - However, if the conduct changed over time, that changed conduct was inadmissible because it was not an extension of the original conduct - The Saskatchewan Court of Appeal affirmed the decision - See paragraphs 35 and 105.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - In 1889, an Indian Band entered into an adhesion agreement with Canada on the same terms and conditions as those granted under Treaty No. 6 - The Band received a portion of their reserve entitlement under the Treaty - It claimed additional lands to complete the Treaty entitlement - The Treaty granted each Indian 128 acres of land, but did not fix a date for calculation of land entitlement - The Band argued that entitlement was based on the date of allotment - The Saskatchewan Court of Appeal determined entitlement based on the Band's population as of 1889 adjusted for the late adherents - The court considered the written text of the Treaty, the written and oral record of the negotiations, the historical and cultural context in which the treaty was negotiated and the subsequent conduct of the parties - See paragraphs 53 to 161.

Indians, Inuit and Métis - Topic 4412

Treaties and proclamations - General - Evidence - [See Evidence - Topic 1527 , and second Indians, Inuit and Métis - Topic 4410 ].

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - [ Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - The Saskatchewan Court of Appeal stated that "[f]or an Indian reserve to be created there must be a clear intention on the part of the Crown to set apart a defined tract of land as an Indian reserve. The Crown must carry out this intention by, for example a positive act of an official properly 'deputed' or authorized to carry out the intention." - See paragraph 165.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - The Lac La Ronge Indian Band submitted that lands at Candle Lake, Saskatchewan, were set aside as an Indian reserve pursuant to Treaty No. 6 - The trial judge rejected the assertion - Although the federal Crown had been interested in creating a reserve, had taken steps to create a reserve, had intended to create a reserve and had made a tentative decision to create a reserve, it had not created a reserve - The Chief Superintendent of Indian Affairs had not authorized his deputy to create a reserve, only to ascertain suitability - The Department had retained authority to proclaim the creation of a reserve, but had failed to do so - Its intention was insufficient - The Saskatchewan Court of Appeal affirmed the decision - See paragraphs 162 to 187.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - An Indian Band submitted that the lands designated for an Indian school were originally set aside as an Indian reserve pursuant to Treaty No. 6 and remained so because they were never surrendered - The Treaty contemplated the creation of schools which would be located in reserves - The Crown asserted that the Department of Indian Affairs had provided the school and operating funds, but had not created a reserve by doing so - The trial judge held that the school lands were not established as a reserve - While the Crown had established a school, it had neither intended on establishing nor took steps to establish a reserve - The Crown could and did act outside the Treaty's parameters by maintaining a school elsewhere than on reserve land - The Saskatchewan Court of Appeal affirmed the decision - See paragraphs 196 to 213.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - [See third Indians, Inuit and Métis - Topic 4410 ].

Indians, Inuit and Métis - Topic 5507.1

Lands - Reserves - Entitlement - [See third Indians, Inuit and Métis - Topic 4410 ].

Cases Noticed:

R. v. Horse; R. v. Standingwater, [1988] 1 S.C.R. 187; 82 N.R. 206; 65 Sask.R. 176, refd to. [para. 34, footnote 14].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 34, footnote 15].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 34, footnote 16].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 36, footnote 17].

Mitchell v. Minister of National Revenue (2001), 269 N.R. 207; 199 D.L.R.(4th) 385 (S.C.C.), refd to. [para. 36, footnote 18].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 38, footnote 19].

Saanichton Marina Ltd. v. Tsawout Indian Band (1988), 18 B.C.L.R.(2d) 217 (S.C.), refd to. [para. 40, footnote 22].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 49, footnote 26].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 50, footnote 29].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 159, footnote 93].

Hay River (Town) v. Canada (1980), 101 D.L.R.(3d) 184 (F.C.T.D.), refd to. [para. 164, footnote 95].

St. Catherine's Milling and Lumber Co. v. The Queen (1887), 13 S.C.R. 577, refd to. [para. 164, footnote 95].

Esquimalt & Nanaimo Railway Co. v. McLellan et al., [1918] 3 W.W.R. 645 (B.C.C.A.), refd to. [para. 164, footnote 95].

Canadian Pacific Ltd. v. Paul et al., [1988] 2 S.C.R. 654; 89 N.R. 325; 91 N.B.R.(2d) 43; 232 A.P.R. 43, refd to. [para. 164, footnote 95].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161, refd to. [para. 164, footnote 95].

Ross River Dena Council Band v. Canada (1999), 182 D.L.R.(4th) 116 (Y.T.C.A.), refd to. [para. 164, footnote 95].

Alexander Indian Band No. 134 et al. v. Canada (Minister of Indian Affairs and Northern Development), [1991] 2 C.N.L.R. 22; 39 F.T.R. 142 (T.D.), refd to. [para. 191, footnote 109].

Bruno v. Canada (Minister of Indian Affairs & Northern Development) - see Alexander Indian Band No. 134 et al. v. Canada (Minister of Indian Affairs and Northern Development).

Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 192, footnote 110].

Authors and Works Noticed:

Canada, Department of Public Works and Government Services, Indian Claims Commission Proceedings, Special Issue on Treaty Land Entitlement (1969), pp. 249, 250 [para. 121, footnote 78].

Canada, Department of Public Works and Government Services, Indian Claims Commission Proceedings, Special Issue on Treaty Land Entitlement (1996), pp. 300 [para. 106, footnote 67]; 301 [paras. 106, 107, footnotes 67, 68]; 310 to 316 [para. 109, footnote 69].

Erasmus, Peter, Buffalo Days and Nights, generally [para. 100, footnote 64].

Morris, Alexander, The Treaties of Canada With The Indians of Manitoba and The North-West Territories (1880) (Reprint 1991), pp. 16 [paras. 66, 87, footnotes 40, 52]; 19, 20 [para. 68, footnote 42]; 25, 26 [para. 99, footnote 63]; 28 [para. 52, footnote 30]; 29 [para. 89, footnote 53]; 32 [para. 52, footnote 31] 45 [para. 70, footnote 45]; 52 [paras. 71, 91, 150, footnotes 46, 56, 92]; 204 [paras. 77, 93, footnotes 47, 57]; 205 [paras. 77, 90, 93, footnotes 47, 54, 57]; 218 [para. 98, footnote 62]; 243, 244 [para. 95, footnote 59]; 250 [para. 80, footnote 50]; 268 [para. 81, footnote 51]; 322, 333 [para. 69, footnotes 43, 44].

Counsel:

Mark R. Kindrachuk, for the appellant, Justice Canada;

P. Mitch McAdam, for the appellant, Saskatchewan Justice;

Thomas R. Berger, Q.C. and Gary A. Nelson, for the respondents;

Robert J. Normey, for the intervener, Alberta Justice;

Rangi J. Jeerakathil, for the intervener, Bigstone Cree Nation;

Jeffrey Rath and Stephen Zaluski, for the intervener, Athabaska Tribal Council.

This appeal was heard on June 23, 24 and 25, 2001, by Tallis, Vancise and Gerwing, JJ.A., of the Saskatchewan Court of Appeal. Vancise, J.A., delivered the following judgment for the court on October 23, 2001.